Judicial elections in the United States

Judicial elections are one of many selection methods for state supreme court, appellate, and local judges in the United States. Judicial elections can be both partisan, a nominee’s party is listed on the ballot, and nonpartisan, a nominee appears without a party affiliation on the ballot.

How judges are selected varies both across states and within a state, depending on the type of judge. To select supreme court justices, 14 states use nonpartisan elections and seven states use partisan elections. Twelve states use nonpartisan elections and seven states use partisan elections to select judges for their intermediate appellate courts. Twenty states use nonpartisan elections and nine states use partisan elections to select their trial judges. These numbers are approximations because each state has slightly different procedures that may use both election and appointment components, and so sources may categorize them differently.

History of judicial elections

Up until 1845, any state that entered the Union had appointments as their judicial selection method. However, by the mid-1860s, 24 out of the 34 states in the Union instituted some form of judicial elections. Historians have several theories as to why the U.S. shifted towards judicial elections.

Some scholars assert that it was the onset of Jacksonian Democracy that led to judicial elections becoming more popular. Party members became wary of corrupt appointments based on patronage and saw appointees as part of an upper class they resented. Instead, they wanted judges who more attune to the interests of the “common man.” Other historians emphasize how the Panics of 1837 and 1839 fed into these Jacksonian ideals. They argue that with excessive spending from state governments to build public works projects and the successive economic crisis, Democrats were emboldened to pursue constitutional reforms to cull legislative authority.

Other historians argue that partisan politics were not the main drivers of this wave of judicial reform. Moderate lawyers of both the Whig and Democrat parties dominated the state constitutional conventions where this reform occurred. These lawyers called for judicial elections to increase the court’s speed and capacity, elevate perceptions of the profession, rout out partisanship, and enhance judicial power.

Related Supreme Court decisions

The U.S. Supreme Court has decided a variety of cases that impact state judicial elections.

• Republican Party of Minnesota v. White, 536 U.S. 765 (2002) decided that judicial candidates have the freedom to speak on legal and political issues.
• Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) ruled that an elected judge must recuse themselves from hearing a case related to a significant campaign contributor’s finances, if there is an “objective and reasonable perception” that a judge may be biased.
• Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) made it so interest groups, corporations, and unions have no limit on independent expenditures on a political race.
• Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011) found that if a candidate is enrolled in public financing and they are outspent by a candidate with private donors, the public finance program cannot issue “matching funds” to ensure parity between the two candidates.

Opinions on judicial elections

There are a wide variety of opinions on the merits and flaws of judicial elections, sometimes varying between partisan versus nonpartisan elections. When weighing the various methods of appointment, scholars often frame their advantages and disadvantages as a tradeoff between judicial independence — which appointments secure most directly — and accountability — which elections serve. That said, some scholars have attempted to complicate the debate beyond these two characteristics. Experts are particularly passionate about judicial elections because state supreme courts hear 95 percent of all cases in the U.S.

Merits of judicial elections

Political scientist Chris Bonneau supports partisan judicial elections because “they are effective mechanisms for providing voters with relevant information about judicial candidates, meaningful choice in elections, and transparency in the selection process.” He asserts that partisan affiliation allows for voters to get easy access to information about potential judges, particularly their ideology. Studies have also shown that more people vote in partisan elections than other types of judicial elections. He also argues that fundamentally judicial elections give voters more authority over who gets on the bench, which is essential because what constituents value in their judges may vary drastically among themselves and differ from what government officials involved in an appointment process may desire. Voters may also seek different traits in their local judges than their appellate judges. Finally, Bonneau posits that elections are the most forthcoming about the judicial selection process, relative to other methods, because voters are directly involved. A survey experiment indicates that people view the courts more legitimately when judges are elected.

A group of experts, writing for the Federalist Society, particularly emphasize the success of judicial elections as an accountability measure, citing how five of the seven states with partisan supreme court elections were successful in shifting away from “trial lawyer-inclined judiciaries” in the early 2000s — what they interpreted as an indication of the voter’s will being successfully enacted.

Flaws of judicial elections

One of the main concerns about judicial elections is how campaign donors may impact judicial outcomes. Critics point to the fact that since the Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) decision outside groups can raise money for candidates with far less restraint, with the 2021-2022 state supreme court election cycle having the greatest influx of money from outside groups in history. Scholars worry that judges will make decisions based on the desired outcome of donors rather than the circumstances of a specific case and that higher donors will have a disproportionate impact on the makeup of the courts. While researchers have struggled to find a definitive causality between campaign donations and judges' decisions, one study concluded that for the Michigan State Supreme Court, which has a partisan component in its election, there is causality between donors and decisions. There have also been a variety of studies that demonstrate some link between campaign donations and judicial decision-making. For example, in a 2001 survey of state and local judges, 46 percent of respondents reported that they felt contributions had an effect on judicial opinions. From 2008-2009, in 60 percent of the civil cases heard before the Nevada Supreme Court, at least one of the parties involved had contributed to a justice they appeared before.

Scholars are also concerned that an impending re-election may influence judicial decision-making. One study found that incarceration rates rise by 2.6 percent for Black men in the half year leading up to the election, which is particularly true in districts where the average voter is likely to have more racial animus. Other studies have found that judges enforce lengthier sentences and death penalty outcomes become more common as Election Day approaches.

Others point to the fact that judicial elections pose a unique barrier to increasing the diversity of the bench as studies suggest that minority candidates especially struggle to raise campaign funds. Evidence also suggests that women and minority candidates may face implicit or explicit bias from voters.